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Dirty Secrets Behind the Campaign to Poison Your Air

Sometimes a moment captures dirty, squirming truths like a rat trap. That happened last week in the Senate.

The Senate’s clean air subcommittee convened a hearing on EPA’s mercury and air toxics standards (MATS) for power plants that burn coal and oil. These landmark standards will prevent 130,000 asthma attacks, 5,000 heart attacks and up to 11,000 premature deaths every year starting in 2016. [pdf]

Staff for Republican Senators invited two former Bush administration officials to criticize these health standards: Susan Dudley, former head of the White House’s Office of Information and Regulatory Affairs, and Jeff Holmstead, former EPA air chief turned utility industry lawyer/lobbyist.

Mr. Holmstead headed EPA's air office during most of the Bush administration when it evaded the power plant air toxic standards required by the Clean Air Act. Instead Mr. Holmstead oversaw EPA's adoption of substitute rules that allowed all power plant air toxins save mercury to go unregulated; set weaker mercury standards whose ultimate reductions were delayed by nearly two decades; and prescribed a cap-and-trade program for the neurotoxin, mercury. A federal appellate court overturned the Bush administration rules in a scathing ruling [pdf] that compared the agency's legal reasoning to the capricious Queen of Hearts in "Alice in Wonderland."

For her part, Ms. Dudley headed the White House regulatory office during the period when the Bush administration was defending its illegal substitute standards in court and appealing the vacatur of those standards until the last day of the administration. The eight years of the Bush administration passed without EPA enforcing the Clean Air Act properly to protect all Americans against the toxic air pollution emitted by power plants.

Following nearly a decade of delay, inaction and failed responsibilities, these two witnesses testified that the mercury and air toxics standards should be delayed further, weakened or eliminated altogether. Their testimony advanced a series of coal and electric utility industry talking points that it’s worth breaking down and debunking here. I have debunked some of these arguments before, but this week’s hearing really crystallized many of the dirty little secrets and maneuvers on which the industry lobbying campaign is founded.

The “Mercury-Soot Shell Game”

In this maneuver, industry lobbyists and obedient politicians first pretend that EPA’s air toxics standards are only about reducing mercury pollution from power plants. See Mr. Holmstead’s written testimony at pages 2, 3, 4 & 5. If the standards are only about mercury (which of course they are not), then, the industry argument follows, it’s somehow inappropriate for these standards also to reduce soot pollution (so-called “PM2.5” or fine particle pollution) that is unavoidably and necessarily reduced when you control all of a power plant’s toxic air pollution.

According to this peculiar industry line of argument, because EPA sets National Ambient Air Quality Standards for PM2.5 pollution, then EPA should only reduce that pollution under one subpart of the Clean Air Act and not another. See Ms. Dudley’s testimony at page 4 and Mr. Holmstead’s at pages 3-4.

Here’s why this contrived argument is nonsense as a matter of law and iresponsible policy to boot:

It’s true that power plants are the nation’s largest source [pdf] of mercury pollution, which is a potent brain poison. MATS will for the first time set nationwide standards to reduce mercury pollution from all coal and oil-burning power plants by 90%.

But that’s not all that the standards will do. MATS also will reduce the more than 60 other toxic air pollutants [pdf] that are emitted by power plants, including arsenic, lead, heavy metals and acid gases. Power plants are the leading industrial source of nickel, selenium and hexavalent chromium pollution in the U.S. These and other toxic air pollutants are “known or suspected of causing cancer and other serious health effects.” [pdf] In addition to being carcinogens and neurotoxins, many power plant hazardous air pollutants (HAPs) are also PM2.5 pollution.

PM2.5 pollution simply means particles 2.5 micrometers in diameter or smaller. These tiny pollutants penetrate deep into the lungs and blood stream and cause a variety of serious health hazards. Some particles of lead and arsenic, just like some particles of soot and smoke, happen to be smaller than 2.5 micrometers following the combustion processes at power plants. So rules aimed at reducing these air toxins employ a number of commonly used pollution control devices that will also and unavoidably reduce PM2.5 pollution that does not consist of air toxins (e.g., sulfates). This air pollution is still very harmful due to how it affects our respiratory and cardio-pulmonary abilities, it’s just not toxic.

The Clean Air Act requires the deep reduction of all toxic pollutants from power plants. Neither G.O.P. witness claimed otherwise in carefully worded testimony, nor did any Senator.

It would be perverse to deny or ignore the total benefits that these standards achieve by reducing multiple types of air pollution. This is for the simple reason that the pollution control equipment needed to meet the Mercury and Air Toxics Standards also will reduce the PM2.5 pollution responsible for so many premature deaths, heart attacks and asthma attacks. It is in fact physically impossible to reduce all of the toxic air pollution EPA is required to reduce from power plants without also reducing significant amounts of dangerous PM2.5 pollution. The industry witnesses’ and critical Senators' carefully chosen words did not dispute this either, opting instead to ignore the fact.

It is only logical and appropriate, accordingly, to calculate the total health benefits for Americans, as EPA has done, from reducing all these pollutants, as the standards and the control equipment will do. This honest presentation of benefits has riled up industry lobbyists and some Senators. They are desperate to pretend these health standards are just about mercury. And they don’t like talking about the legal and logical reality that cleaning up all toxic air pollution from power plants yields tremendous, wide-ranging health benefits for Americans.

Perhaps Dr. Jerome Paulson, testifying on behalf of the American Academy of Pediatrics, said it best during the hearing. After listening to industry attorney Jeff Holmstead put forth a version of the mercury-soot shell game, Dr. Paulson said “if I’m understanding this … we’re talking about unintended positive benefits?”

Yes Doctor, you heard right. Industry lobbyists are so desperate to have the MATS rule overturned that they have resorted to arguing that reducing many kinds of harmful air pollution is somehow a twisted reason that a rule that limits brain poisons, carcinogens and deadly soot pollution should be stricken. You just about have to be a lobbyist to think this way, because very few ordinary citizens would think it strange, much less wrong, that we are successfully cleaning up multiple forms of air pollution by doing exactly what the law requires.

And in an epic example of unblushing hypocrisy, here’s another dirty little secret: some Republican members of Congress [pdf] and industry lobbyists and lawyers are simultaneously attacking EPA’s PM2.5 standards and proposals to strengthen those standards to better protect Americans under the very section of the law that these same critics say should be used to control PM2.5 instead of MATS. See, e.g., here and here. [pdf]

For the dirty air hucksters, the mercury-soot shell game is fail-safe because it turns out there is no ball beneath the shells. There is no form of Clean Air Act authority nor public policy that they support to actually reduce harmful pollution by the amounts and timelines achieved by the mercury and air toxics standards. In this game the perpetual losers are all of us.

Ignoring Health Benefits of the Mercury and Air Toxics Standards

Several Republican Senators and the two G.O.P. witnesses repeated a talking point that the Mercury and Air Toxics Standards will have no real health benefits. For example, Mr. Holmstead’s written testimony contains an entire subheading entitled “[t]he MATS rule delivers few real benefits.” Senator Barrasso (R-WY) echoed this, asserting that the standards have a $10 billion price tag and would provide only $6 million in benefits.

Here are the health hazards that EPA projects [pdf] the standards will avoid every year upon full implementation in 2016:

up to 11,000 premature deaths;

nearly 5,000 heart attacks;

130,000 asthma attacks;

5,700 hospital and emergency room visits; and

540,000 days when people miss work and school.

Let’s be clear: it’s not that the industry and Congressional critics at the hearing were actively denying that these benefits would occur. Rather, they were choosing to ignore those benefits, attempting to mis-characterize and minimize the benefits, and refusing to give credit for those (unmentioned) benefits to clean air standards that they are fervently seeking to eliminate.

EPA further estimates [pdf] that the standards will provide health benefits of up to $90 billion dollars every year. None of the critical Republican Senators or their two witnesses mentioned that figure a single time during the hearing. They did mention the far smaller industry compliance costs ($9.6 billion) repeatedly and exclusively. To his credit, Senator Alexander (R-TN) politely reminded Senator Inhofe (R-OK) of the standards’ enormous health benefits that significantly outweigh compliance costs.

What’s more, the benefits of the standards are likely to be much greater than originally estimated. Ms. Dudley herself acknowledged this in her testimony (fn 7): due solely to methodology limitations, EPA did not monetize the benefits of reducing toxic air pollution in these air toxic standards. (pdf, ES-1). Although the agency has tools that enable it to roughly monetize some benefits from reducing mercury emissions, the same tools do not exist to monetize benefits from the more than 60 other air toxins that power plants release. Industry has seized upon this regrettable methodological shortcoming to twist it into something like this: “since EPA didn’t monetize the benefits from reducing toxic air pollution there are no benefits from reducing toxic air pollution.”

It takes a lot of gall to argue that reducing arsenic, lead, and acid gases from the nation’s largest industrial source of these pollutants “delivers few real benefits,” as one of Mr. Holmstead’s law partners and fellow utility industry lobbyists has asserted.

EPA believes “these unquantified benefits could be substantial, including the overall value associated with HAP [hazardous air pollutant] reductions ….” (pdf, ES-9). For these hazardous air pollutants, EPA undertook a qualitative health effects analysis that showed adverse health effects avoided by the standards would include: “chronic health disorders (e.g., irritation of the lung, skin, and mucus membranes, effects on the central nervous system, and damage to the kidneys), and acute health disorders (e.g., lung irritation and congestion, alimentary effects such as nausea and vomiting, and effects on the kidney and central nervous system). [EPA] classified three of the HAP as human carcinogens and five as probable human carcinogens.” (pdf, pp. 72-73).

Mr. Holmstead went on to assert that “there is a great effort to say this rule is all about protecting children, but it is not.” Ms. Dudley similarly asserted that this rule mostly protects the elderly. One has to wonder how a rule that means up to 130,000 fewer asthma attacks, 5,700 fewer hospital and emergency room visits, and 540,000 fewer days when people would otherwise miss work or school does not improve children’s health. Children’s developing lungs are even more susceptible to air pollution than adults, children spend more time outdoors and improving air quality has huge implications for our nation’s children. Dr. Paulson testified to exactly those points on behalf of the nation's pediatricians, even if the standards' critics were not listening.

Finally, Mr. Holmstead knows well that EPA has long regulated particulate matter and quantified its benefits under the air toxics program. For the Mercury and Air Toxics Standards, EPA quantified and monetized the benefits of reducing particulate matter just as the agency did with air toxics standards adopted under his tenure at EPA, while Ms. Dudley headed the White House office that reviewed these standards. See here (pdf, ch.8), here (pdf, ch.10), here (pdf, ch.3) and here (pdf, ch.6) for examples. Under its Maximum Achievable Control Technology program, EPA has long used PM2.5 as a surrogate for a variety of toxic particles and long established particulate matter emission limits in air toxics standards. The agency also has regularly quantified the benefits of air toxics standards by calculating the benefits of reducing criteria pollutants such as particulate matter and NOx.

Where were the protests and same arguments by Mr. Holmstead and Ms. Dudley when the offices they headed approved these same practices? And where was the political indignation and opposition from conservative congressional critics during the prior administration? Nowhere to be seen.

The dirty little secrets just pile up: all this newfound opposition to the longstanding practice of achieving and recognizing soot reductions is just so much partisan hypocrisy, willful disregard of history and opportunistic flailing when the mercury and air toxics standards’ tremendous health benefits cannot be denied.

False Promises and Manufactured Concern

Ms. Dudley and Mr. Holmstead claimed repeatedly that there are “more effective” ways of achieving mercury reductions. Never once in the hearing nor in their written testimony, however, did they put forth an alternative to the MATS that would be as effective or timely. Instead, both Ms. Dudley and Mr. Holmstead, with the encouragement of Senator Inhofe and Senator Sessions (R-AL), repeatedly extolled the virtues of failed legislation from 2005, the so-called “Clear Skies Act.” That legislation would have reduced mercury emissions by less than 70% on average nationwide and not until 2025(pdf, p.15).

By comparison, EPA’s MATS will reduce mercury emissions by 90% from individual power plants in the next four years (five in some cases). And of course, the Clear Skies bill failed to control the more than 60 other toxic air pollutants emitted by power plants, while it actually would have eliminated (pdf, 18-20) Clean Air Act authority to reduce all those toxins. No wonder that legislation was championed by dirty utility companies and strongly opposed by state and local air quality officials and public health organizations. But last week's hearing saw MATS critics seizing upon the deplorable Clear Skies legislation as a bizarre form of street cred.

Mr. Holmstead and Ms. Dudley also lauded the Bush administration’s illegal Clean Air Mercury Rule (CAMR), adopted after the Senate rightly refused to pass the Clear Skies bill out of the environment committee. In response to a question from Senator Sessions, Mr. Holmstead acknowledged that that rule (in addition to being illegal), "ultimately" would have reduced mercury emissions by a weaker 70%. He was right to choose the word "ultimately" carefully. The cap-and-trade structure of CAMR combined with other gimmicks meant even that rule's weaker 70% reductions would not have been achieved until well into the 2020's, and some states' overall mercury emissions actually would have increased under CAMR.

For her part, Ms. Dudley offered the truly incredible claim that there are a lot more effective ways than regulation to achieve the goal of reducing mercury and all air toxins from power plants. This notion finds no support in the actual law, of course, and Dudley candidly admits she does not know how EPA would carry out her novel deregulatory suggestion.

But the suggestion is not serious policy either. The hearts of conservative-liberterian economists and academics may flutter over the theory of addressing pollution externalities through voluntarism and pretty please entreaties. But for good reason environmental laws are not this foolhardy and feckless. Ms. Dudley does not offer so much as a plausible theory why polluters would clean up their pollution as effectively and expeditiously as the law requires if they did not have to do so.

Finally, Mr. Holmstead and Ms. Dudley advanced their opinions on what the real risks to our children’s health are where power plants are concerned. (Hint: It’s not air pollution).

Ms. Dudley asserted that the rule could actually end up harming public health, because families will have to pay more in energy costs and will have less to spend on health care. And our friends at Earthjustice already have recounted the staggering rationale that Mr. Holmstead offered:

“Look, anybody who has a child with asthma, anybody who is caring for an elderly relative knows that during times of the year, the most important thing you can do is get them into a room that has good air conditioning," said Jeff Holmstead during his testimony. "If you make that air conditioning a lot more expensive [note: MATS won’t], you're gonna have problems."

By this twisted logic, we should allow oil refineries to dump poisons into drinking water supplies because regulating this activity increases the price of gasoline that fuels ambulances taking people to hospitals. Or drug manufacturers should be able to pollute and poison at will because they produce drugs that make us healthier.

Just don't drink the water. Stay indoors and don't breathe the air.

But why stop there? Complying with all laws involves costs. So why not exempt electric utilities and drug companies and oil refineries from discrimination laws, child labor laws, and criminal laws? We could anoint lobbyists and lawmakers to serve on death panels weighing which laws corporations should not have to follow because their product benefits outweigh the laws' costs.

Fortunately this form of sophistry and laissez-faire social engineering has never been embodied in environmental laws or any other health and safety laws in this country.

The Clean Air Act does not allow differential deregulation based upon the usefulness of a polluter's product. Mr. Holmstead is a smart lawyer who knows this legal reality but chose to ignore it.

Clean Air champion Senator Lautenberg (D-NJ) noted at the hearing that “we need to do everything we can to protect the well-being of children” since “mercury is one of the most toxic pollutants we face and is especially detrimental to babies and children.” Senator Alexander echoed this, saying “there is no excuse to operate coal plants that do not have advanced pollution controls” for all forms of their harmful air pollution.

Senator Alexander is right. There are no longer reasonable excuses for continuing to impose these avoidable health hazards on the American people. That won’t stop naysayers and apologists from concocting whatever excuses they can, no matter how off-base. But at least we can disclose the truth behind dirty secrets to see the enterprise for what it really is: just dirty.